MAJID ABDUL v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 24/2021

[2021] HKCA 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2869 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  On 6 August 2020, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  On 18 September 2020, the applicant filed a summons for extension of time to appeal against that decision as the time for filing his appeal ended on 14 September 2020.  The applicant’s summons was dismissed by DHCJ C P Pang on 5 January 2021[2].

3.  On 19 January 2021, the applicant filed with the Court of Appeal the present summons seeking to set aside the order dated 5 January 2021 and leave to file notice of appeal.  This summons should be treated as a renewed application for extension of time to appeal against the judge's decision of 6 August 2020: See Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8.

4.  The applicant is a national of Pakistan.  He is 34 years old.  He entered Hong Kong illegally on 6 October 2015 and was arrested by the police on the same day. He lodged his non-refoulement claim on 4 November 2015.  His claim was made on the basis that if he returns to Pakistan he will be harmed or killed by his cousin for refusing to join his political party Pakistan Muslim League (Nawaz) (“PML(N)”) and over a dispute concerning the sale proceeds of land.

The Director’s decision

5.  By a Notice of Decision dated 26 October 2017, the Director rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk[4], BOR 3 risk[5] and persecution risk[6].

The Board’s decision

6.  The applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 28 September 2018.  Although the Board accepted that the applicant’s uncle owed money to the applicant’s father for the land and that there is an ongoing dispute in court in relation to the unpaid money, the Board did not accept that the applicant was involved in such dispute or that he was sought, threatened or harmed as a result of the dispute between himself and his uncle or the dispute with his cousin.  The Board considered the applicant is not a truthful witness because of the significant inconsistencies in his evidence.  The Board found it is not credible that the applicant’s cousin was only seeking to harm the applicant rather than the applicant’s father who was taking legal action to recover the money against the applicant’s uncle and that the applicant would deem it necessary to leave his country for Hong Kong when he only sustained minor injuries from the fight in 2015 and was not harmed when he was staying in his area and elsewhere in Pakistan prior to his departure.  Moreover, the Board held it is a private dispute and was not motivated by the applicant’s race, religion, nationality, membership of a particular social group or his political opinion.  Therefore, the Board dismissed the appeal on 29 November 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 14 December 2018 for leave to apply for judicial review against the Board’s decision.  In his supporting affirmation, he reiterated that his cousin would harm or kill him upon his return to Pakistan.

The judge’s decision

8.  DHCJ Lung considered the leave application on the paper as the applicant did not request for an oral hearing.  The judge held there is no error of law or procedural unfairness in the Board’s decision.  Therefore, the leave application was dismissed on 6 August 2020.

Grounds of intended appeal

9.  In the present application, the applicant stated his grounds of appeal in his affirmation which may be summarized as follows[7]:

(1)  The judge has erred by not taking all relevant circumstances into account;

(2)  The judge made a biased and erroneous judgment;

(3)  The judge only gave the applicant the opportunity to advance his grounds on the spot on the day of the oral hearing.  This is unfair as he only understood the judgment on the day of the oral hearing and did not have enough time to digest it;

(4)  The applicant barely speaks English and cannot read or write English properly but was not provided with language and legal assistance.

Analysis and disposition

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal.  The order was made on 6 August 2020.  Pursuant to Order 3 rule 3 of the Rules of the High Court, the period of the Court’s summer vacation shall be excluded in reckoning any period prescribed by these rules or by any order or direction for serving, filing or amending any pleading, and hence the period of the summer vacation in August 2020 shall be excluded in reckoning the 14-day period for the applicant to file his notice of appeal[8]. Therefore, the time for lodging his appeal ended on 14 September 2020 and the applicant was late by 4 days when he took out the summons for extension of time at the court below on 18 September 2020.

12.  The applicant told DHCJ Pang at the hearing on 26 November 2020 that he only received the order on 28 August 2020.  In view of the short delay in the present case, and considering the postal delay during the Covid-19 pandemic, his explanation may be considered as acceptable.  The court would still assess whether the applicant can show there is a reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application[9].

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The applicant’s ground relating to the lack of legal representation is unmeritorious.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration and the Court of Appeal has repeatedly stated that an applicant of non‑refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[10].

15.  The applicant’s ground pertaining to the lack of language assistance is also without merits.  In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 §12. 

16.  The applicant complained that he did not have time to digest the judgment so as to advance his grounds because he only understood the judgment on the day of the hearing.  However, he filed his present application more than 1.5 months after the last oral hearing and he has not demonstrated that he could have advanced more viable grounds when he was given more time.  This ground cannot assist the prospect of success of his intended appeal.

17.  The rest of the applicant’s grounds are just bare assertions without particulars, elaboration or evidence in support.

18.  For the above reasons, there is no prospect of success in the applicant’s intended appeal.  We decline to exercise our discretion to extend time to appeal against the decision of DHCJ Lung on 6 August 2020 and dismiss the summons filed on 19 January 2021.

[1] [2020] HKCFI 1871

[2] [2021] HKCFI 27

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[4] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] These grounds have also been raised in his previous application for extension of time, except for ground (3).

[8] Re Satinder Pal Singh [2021] HKCA 319 §17

[9] Re Gurung Min Bahadur [2018] HKCA 226 §10

[10] Re Paswan Shibu Lal, CACV 284/2017 §21